United States Court of Appeals

for the Fifth Circuit

No. 21-30029

Beatriz Ball, L.L.C., 

Plaintiff—Appellant,

versus

Barbagallo Company, L.L.C., doing business as 

Pampa Bay, 

Defendant—Appellee.

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:18-CV-10214

Before Jones, Haynes, and Costa, Circuit Judges.

Per Curiam:

Beatriz Ball, a maker of popular tableware designs, challenges the 

district court’s conclusions that (1) the company lacked standing under the 

Copyright Act because the plaintiff did not obtain a valid assignment of its 

claim, and (2) it failed to establish a protectible trade dress under the Lanham 

Act. We hold that the district court erred in its standing determination and

that certain errors in its analysis of the trade dress claim require 

United States Court of Appeals

Fifth Circuit

FILED

July 12, 2022

Lyle W. Cayce

Clerk

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reconsideration by the district court. Accordingly, we REVERSE and 

REMAND the judgment.1

BACKGROUND

Beatriz Ball, LLC, is a Louisiana company doing business as Beatriz 

Ball and Beatriz Ball Collection. Beatriz Ball, the individual, (“Ms. Ball”) is 

the company’s owner, founder, and designer.

2 Barbagallo Company, LLC is 

a New Jersey company doing business as Pampa Bay. Beatriz Ball alleges that 

Pampa Bay has been marketing and distributing products that infringe on 

Beatriz Ball’s registered copyrights and its unregistered trade dress for its 

“Organic Pearl” line of tableware. Beatriz Ball brought suit against Pampa 

Bay in Louisiana federal court, asserting claims for copyright infringement 

under the Copyright Act and unfair competition under § 43 of the Lanham 

Act.

I. Beatriz Ball and the Organic Pearl Collection

Beatriz Ball as it currently exists is the result of the ingenuity of a 

woman who, as a child, fled penniless with her family from communism in 

Cuba to Mexico with hope for a better life. In Mexico, Ms. Ball befriended a 

family that owned a successful business creating silver designs out of a new

cheaper alloy. The process and concept intrigued her, and she remained 

close to the family, learned the trade, and observed the growth of their 

business over the years.

Ms. Ball later married and moved to New Orleans, where she started 

her own small business buying alternative metal pieces from small foundries

and selling them at home shows and bazaars. When her endeavors met with 

1 Judge Haynes concurs in the judgment only.

2 Ms. Ball is not a party to this suit.

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success, she decided that she wanted to control production of her products, 

so she built her own factory and hired artisans. She began designing her own 

pieces, and she developed a unique alloy combination with particular 

elements that enhanced the shine so that it looked “as much [like] silver as 

possible.” This new control enabled her to expand from direct consumer 

sales to business-to-business sales because she could guarantee the quality 

and quantity of production.

Today, Beatriz Ball has grown into a very successful company. It 

presently has 13 active collections with products made from a variety of 

materials, with metalware remaining the bulk of its sales. At issue in the 

present dispute is the company’s Organic Pearl collection, which has been on 

the market since 2005. It remains one of the company’s most popular 

collections. A main feature of this collection is its pearl border, consisting of 

handcrafted pearls varying in size and shape, intending to appear 

unpredictable and distorted. In addition to the “organic shape and . . . freeformed pearl,” the collection also incorporates a more reflective design. The

disuniformity in both the pearl border and in the overall shape is one of the 

defining characteristics of the Organic Pearl collection. Each piece is 

individually produced by hand in Mexico using an ancient sand-mold casting

method that requires a rare set of skills.

Beatriz Ball has registered copyrights protecting four of its Organic 

Pearl designs. It also claims that its Organic Pearl line embodies a distinct 

trade dress, which is protectible under the Lanham Act. Beatriz Ball 

identifies its trade dress in the “Organic Pearl” collection as follows:

[Beatriz Ball] owns trademark rights to the “look and feel”—

i.e., the trade dress—of the “Organic Pearl” 

collection . . . . The Organic Pearl trademark applies to 

tableware of hand-crafted and artisanal quality, such that each 

item in the collection will have individual variation because 

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each is poured and polished by hand with each piece having 

undulating shape ornamented with rims of individually-formed 

clay bead, each intentionally having a slightly irregular shape 

and size accentuating their hand-made artisanal quality.

Importantly, Organic Pearl is not a registered trade dress.

II. Pampa Bay

Since 2016, Pampa Bay has been marketing and distributing products 

that look strikingly similar to the Organic Pearl designs. While nearly 

identical in appearance to many pieces of Organic Pearl tableware, Pampa 

Bay products are made with cheaper materials and are sold at lower priced 

retail outlets. Because of this, Beatriz Ball alleges that Pampa Bay has 

infringed upon its copyright and its unregistered trade dress. It claims that 

Pampa Bay’s product lines are “confusingly similar” to Beatriz Ball’s unique 

Organic Pearl collection because “Pampa Bay’s products copy the ‘look and 

feel’ of Beatriz Ball Organic Pearl trade dress in every attribute.” In the 

images reproduced below, Beatriz Ball’s products appear on the left and 

Pampa Bay’s products appear on the right.

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III. District Court Proceedings

The district court conducted a three-day bench trial and ultimately 

ruled against Beatriz Ball on all of its claims. Regarding the Lanham Act 

claims, Judge Vitter found that Beatriz Ball had not met its burden of 

establishing that its unregistered trade dress acquired “secondary meaning.” 

Since secondary meaning is a prerequisite for protection of an unregistered 

trade dress under the Lanham Act, the district court found for Pampa Bay 

without reaching the merits of Beatriz Ball’s claim.

Further, the district court held that Beatriz Ball lacked standing to 

bring the copyright claims because it lacked a legal interest in causes of action 

for the relevant infringements. All four copyrights list “Beatriz Ball 

Collection” as the copyright claimant. The day before this lawsuit was filed,

Beatriz Ball Collection assigned ownership of these copyrights to plaintiff 

Beatriz Ball, LLC. The language of the assignment is as follows:

Assignment. Assignor [Beatriz Ball and Beatriz Ball 

Collection] hereby irrevocably conveys, transfers, and assigns 

to Assignee [Beatriz Ball, LLC], and Assignee hereby accepts, 

all of Assignor’s right, title and interest in and to any and all 

copyrights, whether registered or not and whether or not 

applications have been filed with the United States Copyright 

Office or any other governmental body. This assignment 

expressly includes any and all rights associated with those 

copyrights.

The district court judge based her decision solely on the language of this 

assignment. She found that, because the assignment did not specifically 

transfer the Assignor’s right to causes of action for prior infringements, 

plaintiff Beatriz Ball, LLC lacked standing to challenge infringements predating the assignment. Beneficial ownership of a copyright is a precondition 

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to standing.

3

 Consequently, the district court did not reach the merits of the 

copyright claim. Beatriz Ball timely appealed the take-nothing judgment as 

to the Copyright Act and Lanham Act claims.

STANDARD OF REVIEW

The district court’s determination on standing is reviewed de novo. 

Three Expo Events, L.L.C. v. City of Dallas, Texas, 907 F.3d 333, 340 (5th Cir. 

2018). Following a bench trial, this court reviews findings of fact for clear 

error and legal issues de novo. Preston Expl. Co., L.P. v. GSF, L.L.C., 669 F.3d 

518, 522 (5th Cir. 2012).

DISCUSSION

I. Standing to Bring Copyright Claims

The Copyright Act provides a cause of action to “[t]he legal or 

beneficial owner” of a copyright to vindicate infringements. 

17 U.S.C. § 501(b). To prevail on a copyright infringement claim, a plaintiff 

must show ownership of a valid copyright; factual copying; and substantial 

similarity. Nola Spice Designs, L.L.C. v. Haydel Enterprises, Inc., 783 F.3d 527, 

544 (5th Cir. 2015). Thus, the question regarding standing is simple—if 

Appellant owned the copyrights at the time of the alleged infringements or if 

Appellant was effectively assigned the rights to vindicate prior infringements, 

it has standing to proceed.

The issue of plaintiff’s standing to sue was not raised by Pampa Bay 

until closing argument in the trial. Responding to the last-minute argument, 

the district court had no factual record on standing but interpreted the 

assignment from Beatriz Ball Collection as legally insufficient to confer 

standing. We are inclined to disagree with the court’s conclusion. In any 

3 17 U.S.C. § 501(b).

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event, there is a more straightforward path to finding that Appellant indeed 

had standing through the Copyright Act’s safe harbor for innocent errors on 

copyright registrations.

On appeal, Beatriz Ball contends, without dispute, that “Beatriz Ball, 

LLC” and “Beatriz Ball Collection” are the same entity, and the assignment 

was executed just before suit was filed out of an abundance of caution in the 

(vain) hope of eliminating any confusion. We hold, however, that the original 

filing was sufficient. The Copyright Act provides that a registration with 

“inaccurate information” can support an infringement action if the 

misstatements in the application were either (1) unknowing or 

(2) immaterial. 17 U.S.C. § 411(b)(1);4 see One Treasure, Ltd., Inc. v. 

Richardson, 202 F.App’x 658, 660 (5th Cir. 2006) (unpublished) (per 

curiam); 2 MELVILLE NIMMER, NIMMER ON COPYRIGHT § 7:20 (2021).

The mistakes on Beatriz Ball’s copyright registrations are 

quintessential examples of the unknowing errors § 411(b)(1) is meant to 

excuse. Nonlawyer employees mistakenly listed the company’s trade 

name—instead of its proper corporate designation, Beatriz Ball, LLC—on 

the copyright applications. Everything in the record suggests that this was an 

innocent, inadvertent error made by workers unfamiliar with the legalese and 

4 This provision states: 

(b)(1) A certificate of registration satisfies the requirements of this section and 

section 412, regardless of whether the certificate contains any inaccurate information, 

unless—

(A) the inaccurate information was included on the application for copyright 

registration with knowledge that it was inaccurate; and

(B) the inaccuracy of the information, if known, would have caused the Register of 

Copyrights to refuse registration.

17 U.S.C. § 411(b)(1).

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misled by inconsistent instructions from the Copyright Office. The Supreme 

Court explained earlier this year that “[l]ack of knowledge of either fact or 

law can excuse an inaccuracy in a copyright registration.” Unicolors, Inc. v. 

H&M Hennes & Mauritz, L. P., 142 S. Ct. 941, 945 (2022). Because these 

employees had no idea the applications were inaccurate, the registrations can 

support Beatriz Ball’s infringement action. See id.

Courts routinely use § 411(b)(1) to overlook similar good faith errors 

and allow suits to proceed under the proper claimant’s name. See Jules 

Jordan Video, Inc. v. 144942 Canada Inc., 617 F.3d 1146, 1155–56 (9th Cir. 

2010) (sole shareholder named instead of corporation); Thomas Wilson & Co.

v. Irving J. Dorfman Co., Inc., 433 F.2d 409, 412 (2d Cir. 1970) (president of 

corporation named instead of corporation); Morelli v. Tiffany & Co., 

186 F. Supp. 2d 563, 565 (E.D. Pa. 2002) (owner named instead of 

corporation); see also One Treasure, 202 F.App’x at 660 (“Courts have 

repeatedly excused a wide range of errors, . . . including misidentification of 

copyright claimant[.]”); Nimmer, supra, at § 7:20 (“[C]ases have forgiven 

even . . . erroneous statements as to the identity of the author, or of the 

copyright claimant.”).5

5 Deciding standing under § 411(b)(1) here does not require referring the issue to 

the Register of Copyrights pursuant to § 411(b)(2), which requires the Register to 

determine materiality only if there is an allegation that the misstatement was both material 

and knowing. 17 U.S.C. § 411(b)(2) (“[A]ny case in which inaccurate information 

described under paragraph (1) [knowing and material misstatement] is alleged.”); see 

Nimmer, supra, § 7:20 (explaining that § 411(b)(2) applies when “parties to a case allege 

deliberate misstatement in the registration certificate”). This is how courts have 

consistently interpreted the requirement. Compare Jules Jordan Video, 617 F.3d at 1156 (no 

allegation the misstatements were knowing and no referral to the Copyright Office); 

Thomas Wilson & Co., 433 F.2d at 412 (same); Morelli, 186 F. Supp. 2d at 565–66 (same), 

with DeliverMed Holdings, LLC v. Schaltenbrand, 734 F.3d 616, 623–24 (7th Cir. 2013) 

(allegation of knowing and material misstatement referred to the Register). The statute 

does not require the Register to make materiality determinations even if the misstatements 

were, as here, made unknowingly. And because unknowing misstatements do not defeat 

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The identity error in this case is the precise situation § 411(b)(1) 

addresses. Beatriz Ball, LLC had standing6 to bring this suit as the actual 

copyright holder pursuant to that provision. Accordingly, we need not 

discuss whether the assignment to Beatriz Ball, LLC should have been 

interpreted under state or federal law or whether it authorized the assignee

to pursue infringement claims predating the assignment. See Prather v. Neva 

Paperbacks, Inc., 410 F.2d 698, 699–700 (5th Cir. 1969); Di Angelo 

Publications, Inc. v. Kelley, 9 F.4th 256, 260 (5th Cir. 2021); Hacienda Recs., 

L.P. v. Ramos, 718 F.App’x 223, 233 (5th Cir. 2018) (unpublished).

II. Trade Dress

Beatriz Ball next challenges the district court’s conclusion that its 

“Organic Pearl” trade dress is not protectible under the Lanham Act. The 

Lanham Act creates a cause of action for trade dress infringement, which is 

analogous to the common law tort of unfair competition. Blue Bell Bio-Med. 

v. Cin-Bad, Inc., 864 F.2d 1253, 1256 (5th Cir. 1989). “Trade dress” refers 

to a product’s total image and overall appearance. Laney Chiropractic and 

Sports Therapy, P.A. v. Nationwide Mutual Ins. Co., 866 F.3d 254, 261 

(5th Cir. 2017). “In general, the Act prohibits a manufacturer from ‘passing 

off’ his goods or services as those of another maker by virtue of substantial 

similarity between the products.” Blue Bell Bio-Med, 864 F.2d at 1256. To 

prevail on its trade dress infringement claim, Beatriz Ball must prove that: 

(1) its trade dress qualifies for protection; and (2) the trade dress has been 

the registrations’ validity, both judicial efficiency and preserving the Register’s limited 

resources support courts’ addressing materiality.

6 It goes without saying that this issue is one of statutory rather than Article III 

standing. HCB Fin. Corp. v. McPherson, 8 F.4th 335, 339 (5th Cir. 2021) (explaining that 

statutory standing is considered an element of the claim addressed at the pleading stage 

under Rule 12(b)(6)).

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infringed by demonstrating a likelihood of confusion in the minds of potential 

consumers. Amazing Spaces, Inc. v. Metro Mini Storage, 608 F.3d 225, 236 

(5th Cir. 2010). Because the district court here determined that Beatriz 

Ball’s Organic Pearl collection lacked the acquired distinctiveness of 

protectible trade dress, it did not reach the issue of infringement.

Importantly, Beatriz Ball’s trade dress is unregistered. The Supreme 

Court has held that, “in an action for infringement of unregistered trade 

dress under § 43(a) of the Lanham Act, a product’s design is distinctive, and 

therefore protectible, only upon a showing of secondary meaning.” WalMart Stores, Inc. v. Samara Bros., 529 U.S. 205, 216, 120 S. Ct. 1339, 1346 

(2000). Secondary meaning is established when, “in the minds of the public, 

the primary significance of a mark is to identify the source of the product 

rather than the product itself.” Id. at 211, 120 S. Ct. at 1343 (internal 

quotation marks omitted). Beatriz Ball’s “burden of demonstrating 

secondary meaning is substantial and requires a high degree of proof.” 

Viacom Int’l v. IJR Cap. Invs., L.L.C., 891 F.3d 178, 190 (5th Cir. 2018) 

(internal quotation marks omitted). In the context of trade dress, the Fifth 

Circuit has articulated seven factors to consider in determining whether 

secondary meaning has been shown:

(1) length and manner of use of the mark or trade dress, 

(2) volume of sales, (3) amount and manner of advertising, 

(4) nature of use of the mark or trade dress in newspapers and 

magazines, (5) consumer survey evidence, (6) direct consumer 

testimony, and (7) the defendant's intent in copying the trade 

dress.

Amazing Spaces, 608 F.3d at 248 (internal quotation marks omitted). 

“Because the primary element of secondary meaning is a mental association 

in buyers’ minds between the alleged mark and a single source of the product, 

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the determination whether a mark or dress has acquired secondary meaning 

is primarily an empirical inquiry.” Id. (internal quotation marks omitted).

Whether Beatriz Ball’s trade dress has acquired secondary meaning is 

considered a question of fact reviewed on appeal for clear error. Id. at 234. 

The court systematically examined each of the seven factors and found only 

the first factor—length and manner of the use of the “trade dress”—

definitely in favor of Beatriz Ball’s claim. Most of the other factors weighed 

against the claim as the court saw it, and plaintiff offered no evidence on the 

consumer survey factor. Nevertheless, a careful review of the record here 

demonstrates that the district court clearly erred in analyzing three of the 

factors: volume of sales, the nature of use of Organic Pearl trade dress in 

newspapers and magazines, and the defendant’s intent in copying the trade 

dress. We take each of these factors individually.

7

A. Volume of Sales

Because the district court perceived that Beatriz Ball only introduced 

evidence of total company sales and no evidence of “sales attributable to the 

7 The district court determined that the “direct consumer testimony” factor 

should be counted against Beatriz Ball, and we agree. Beatriz Ball did not offer direct 

consumer testimony at trial and cannot be entitled to a favorable finding on this factor. But 

the court erred in considering testimony (offered by corporate salespeople, not consumers) 

indicating consumer confusion. Consumer confusion delves into the likelihood of confusion 

element of trade dress infringement and is not relevant for purposes of secondary meaning. 

Amazing Spaces, 608 F.3d at 235–236. See id. at 249 (noting that instances of consumer 

confusion bear on the merits of trade dress claims, but “do not have relevance as to the 

secondary meaning” of the trade dress).

At trial, Beatriz Ball provided testimony of consumer association from its sales 

representatives, but this is not direct consumer testimony. Second-hand observations of 

consumers may sometimes be relevant to this inquiry, but they are by definition not direct 

consumer testimony and are insufficient on their own. This is especially true here, where 

the only testimony provided is from interested parties who work with or for the plaintiff. 

Thus, even though the district court improperly analyzed this factor, the error is harmless 

in the absence of actual consumer testimony.

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Organic Pearl collection,” it determined that the “volume of sales” factor 

counted against finding secondary meaning. It reasoned that it could not 

evaluate the success of the trade dress in the market without knowing the 

volume of sales specific to the Organic Pearl collection. This would have 

been an acceptable inference but for the fact that Beatriz Ball offered

evidence of the exact volume of sales attributable to the Organic Pearl 

collection.

The most precise version of this evidence is a chart that lists the sales

from the Organic Pearl collection for each year from 2009 to 2019. According 

to this chart, Beatriz Ball sold $6.6 million worth of Organic Pearl pieces in 

total. The district court declared that the chart was unhelpful since it only 

“purported to show the total sales of Plaintiff’s products from 2009 through 

September 2019” rather than sales attributable to the Organic Pearl 

collection. The court misunderstood that the chart does represent sales 

attributable to the Organic Pearl collection.

Admittedly, the chart is not clearly labeled and, perhaps in isolation, 

such a mischaracterization would not be clear error. But the chart was not 

the sole evidence of Organic Pearl sales. For example, one of Beatriz Ball’s 

general managers testified that sales from the Organic Pearl collection from 

the last 10 years totaled just over $6.6 million. The same $6.6 million total 

was also attributed to the Organic Pearl collection in sworn declarations 

during the summary judgment briefing. Thus, the volume of Organic Pearl 

sales was solidified in this record.

Accordingly, whether this multimillion-dollar volume of sales 

ultimately weighs for or against secondary meaning should be reconsidered. 

No current circuit precedent expressly addresses a $6.6 million volume, but 

two cases uphold much higher volumes and one rejects a much lower volume

as indicia of secondary meaning. See Bd. of Supervisors for Louisiana State 

Univ. Agric. & Mech. Coll. v. Smack Apparel Co., 550 F.3d 465, 477 (5th Cir. 

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2008) (counting $93 million per year in favor of secondary meaning); Viacom, 

891 F.3d at 191 (counting $470 million from two films featuring the trade 

dress in favor of secondary meaning); Nola Spice Designs, 783 F.3d at 544

(counting $30,500 over 6.5 years against secondary meaning). On remand, 

the district court must decide whether this sales volume over ten years in the 

handmade, heirloom-quality tableware market favors finding secondary 

meaning.

B. Nature of use of the mark or trade dress in 

newspapers and magazines

In considering the “nature of use in newspapers and magazines” 

factor, courts consider to what extent third-party media have reported on the 

purported trade dress. Nola Spice Designs, 783 F.3d at 546; Viacom, 891 F.3d 

at 191; Smack Apparel Co., 550 F.3d at 477. The district court counted this 

factor against Beatriz Ball after analyzing the company’s general advertising 

and self-promoting efforts, which it had already considered under the 

advertising factor. On appeal, Beatriz Ball cites various examples of 

publications that featured third-party promotions of Organic Pearl pieces. 

This evidence deserves consideration. It is incumbent on the district court 

to discern whether these publications “impact[ed] . . . public perception” of 

the trade dress. Nola Spice Designs, 783 F.3d at 546. The district court clearly 

erred by evaluating the wrong evidence relevant to this factor.

It is also important that the name “Organic Pearl” need not be 

associated with Beatriz Ball. What matters is whether the specific features of 

the “Organic Pearl” collection are associated with Beatriz Ball. In its analysis

of the “newspaper and magazines” factor, the district court observed that 

“very few of the advertisements reference the collection by name and just as 

many advertisements highlight Beatriz Ball pieces from other collections.” 

As Beatriz Ball points out, however, “[t]his is not a suit over rights to a name; 

it’s a suit over rights to product designs.” For each of the seven factors, “the 

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focus is on how [the evidence] demonstrates that the meaning of the mark or 

trade dress has been altered in the minds of consumers.” Amazing Spaces, 

608 F.3d at 248 (internal quotation marks omitted) (emphasis added). 

Accordingly, the features of the design are paramount to developing

secondary meaning in the minds of the consuming public.

C. The defendant’s intent in copying the trade 

dress

For this factor, the “relevant inquiry is whether [defendant] intended 

to derive benefits from [plaintiff]’s reputation by using the [trade dress].” 

Viacom, 891 F.3d at 195–96. “Evidence that a defendant intends to ‘pass off’ 

its product as that of another can be found through imitation of packaging, 

similar distribution methods, and more.” Id. at 196. The district court did 

not address intent directly, but rather counted this factor against Beatriz Ball 

by finding that there was no “evidence of direct copying by Pampa Bay.”

The district court’s conclusion was partially based on its observation 

of “widespread use of the alleged trade dress in the tabletop industry.” 

Defendant’s trial exhibits included various products from other 

manufacturers, each featuring some type of pearl rim and/or distorted 

features. The district court determined that the similarities among the 

products showed that the trade dress is not specific to Beatriz Ball. We 

disagree.

A company’s trade dress consists of the totality of features and overall 

appearance. Blue Bell Bio-Med, 864 F.2d at 1256 (“The ‘trade dress’ of a 

product is essentially its total image and overall appearance.” (emphasis 

added)). Here, the district court isolated features of the Organic Pearl 

collection and found that other products that share one or two of those 

features embody the trade dress. But Beatriz Ball’s trade dress claim is not 

confined to products that include a pearl rim or that might include some 

distortions in the product’s shape. As described, the trade dress exhibits a

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unique combination of features pertaining to the individuality of each piece, 

the irregular and unpredictable size and shape of the pearls, the undulated 

shape of the body, the metallic shine, and the overall, accurate impression 

that each piece was handmade with artisanal quality. None of the products 

presented at trial incorporated these elements holistically like the Pampa Bay 

products.8 The district court should have compared the total integration of 

features comprising the Organic Pearl trade dress with the Pampa Bay 

products. Amazing Spaces, 608 F.3d at 251 (internal quotation marks 

omitted) (“The existence of non-distinctive elements does not eliminate the 

possibility of inherent distinctiveness in the trade dress as a whole.”).9

The district court also erroneously relied on testimony suggesting a 

difference in quality between the products produced by Pampa Bay and

Beatriz Ball. It determined that this testimony supported its finding that 

there was no copying. But the Lanham Act’s purpose is to protect against 

infringers who copy a party’s trade dress and infuse the market with lesser 

quality versions, thus confusing the relevant consumers and diluting the 

plaintiff’s reputation.

Protection of trade dress, no less than of trademarks, serves the 

Act’s purpose to secure to the owner of the mark the goodwill 

8 Perhaps the closest are the Lenox products, which still lack total incorporation of 

the trade dress since most of these products lack the metallic shine and are more uniform 

and regular in appearance. Nevertheless, the record shows that Lenox discontinued this 

line of products after Beatriz Ball complained of its infringement.

9 “A competitor can use elements of [plaintiff’s] trade dress, but [plaintiff] can 

protect a combination of visual elements that, taken together may create a distinctive visual 

impression. [Defendant] may enter the upscale Mexican fast-food market, but it may not 

copy [plaintiff’s] distinctive combination of layout and design features. [Defendant’s] 

imitation reflects not merely components of Taco Cabana’s trade dress, but its distinctive 

integration of components.” Taco Cabana Int'l, Inc. v. Two Pesos, Inc., 932 F.2d 1113, 1118 

(5th Cir. 1991), aff'd sub nom. Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 112 S. Ct. 

2753 (1992) (internal citations and quotation marks omitted).

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of his business and to protect the ability of consumers to 

distinguish among competing producers. National protection 

of trademarks is desirable, Congress concluded, because 

trademarks foster competition and the maintenance of quality 

by securing to the producer the benefits of good reputation.

Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 774, 112 S. Ct. 2753, 2760

(1992). Thus, a difference in quality between the products does not support 

a finding that there was no copying.

Ultimately, a visual comparison of Pampa Bay’s products to the 

Organic Pearl line makes it difficult to deny that there was intent to copy. 

The designs are not just alike, they are indistinguishable in some cases. When 

two product designs are so very similar, an inference of intent is permissible.

Moreover, evidence of deliberate copying can be a weighty factor if it appears 

the copying attempted to benefit from the perceived secondary meaning. See 

Ferrari S.P.A. v. Roberts, 944 F.2d 1235, 1239 (6th Cir. 1991) (citing Audio 

Fidelity, Inc. v. High Fidelity Recordings, Inc., 283 F.2d 551, 558 (9th Cir. 

1960)). The district court clearly erred in concluding otherwise.

The sum of errors in the district court’s analysis of secondary meaning 

requires reconsideration of the evidence and overall re-weighing of the 

factors in accordance with this opinion. In requiring reconsideration on 

remand, however, we do not prescribe the outcome of these complex and 

interesting claims.

CONCLUSION

For the foregoing reasons, we REVERSE and REMAND the 

judgment of the district court for further proceedings as detailed above.

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Gregg Costa, Circuit Judge, specially concurring:

I fully join the court’s opinion, which correctly concludes that Beatriz 

Ball has statutory standing and that the secondary meaning analysis should 

be reconsidered. I write separately to remark on how our remand of the trade 

dress claim reveals a paradox that has perplexed me about bench trials: We 

give a trial judge’s detailed and intensive factfinding less deference than a 

jury’s unexplained verdict. 

If a jury had rejected Beatriz Ball’s trade dress claim—giving no more 

explanation than a simple “No” on the verdict form—we would presumably 

affirm. After all, we do not hold that Beatriz Ball is entitled to judgment as a 

matter of law on this claim. Instead, we remand for the district court to 

reassess the trade dress claim because of some errors in its 33 pages 

explaining why it found no protectable trade dress. 

One might think that having to explain a decision helps insulate it from 

review. Isn’t a decision stronger when supported by reasons? One might also 

think that appellate judges reviewing trials would be more deferential to their 

judicial colleagues, who are steeped in the law, than to lay jurors. See Edward 

H. Cooper, Civil Rule 50(a): Rationing and Rationalizing the Resources of 

Appellate Review, 63 Notre Dame L. Rev. 645, 650 (1988) (observing 

that greater appellate scrutiny of bench trials “seems surprising since judges 

are trained professionals who constantly gain experience with . . . our rules of 

adversary trial, while jurors ordinarily are amateurs without substantial 

experience”). But neither is true. 

The requirement that a trial judge explain findings, Fed. R. Civ. P.

52(a)(1), ends up making bench trials more susceptible to reversal. We 

review judges’ findings for clear error. Fed. R. Civ. P. 52(a)(6). That 

standard defers to the factfinder but not as much as the standard for jury 

trials, which allows reversal “[o]nly when there is a complete absence of 

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probative facts to support the conclusion reached.” See Lavender v. Kurn, 

327 U.S. 645, 653 (1946). In essence, trial judges are rewarded for their timeconsuming and thorough explanations with less deference on appeal. Why 

does more work translate to less deference? 

As it turns out, it was not always the case that a judge’s findings 

received less deference than a jury verdict. Before 1938, the standard of 

review applied to a judge’s findings depended on whether the case was at law 

(before the judge because the parties waived a jury) or in equity. See 9C 

Charles Alan Wright & Arthur R. Miller, Federal

Practice & Procedure § 2571 (3d ed. 2022); Robert L. Stern, Review 

of Findings of Administrators, Judges and Juries: A Comparative Analysis, 58 

Harv. L. Rev. 70, 79–80 (1944). For an action at law, a judge’s findings 

of fact “were as conclusive, upon review, as a verdict of a jury.” Aetna Life 

Ins. Co. v. Kepler, 116 F.2d 1, 4–5 (8th Cir. 1941); Stern, supra, at 80 & n.47 

(noting that this standard of review was required by Revised Statutes §§ 649, 

700 (1875)); see also United States v. U.S. Fid. & Guar. Co., 236 U.S. 512, 527 

(1915). In contrast, actions in equity were reviewed for clear error.1

 Stern,

supra, at 80; see D.C. v. Pace, 320 U.S. 698, 701–02 (1944); United States v. 

U.S. Gypsum Co., 333 U.S. 364, 395 (1948). 

This dichotomy fell by the wayside with the Federal Rules of Civil 

Procedure’s merger of law and equity practice. 12A Wright & Miller,

supra, Civ. App. B (2021 ed.) (Supreme Court Order); 4 id. §§ 1004, 1041 

(4th ed.). Left to be decided, however, was whether the legal or equitable 

standard of review would be the uniform one. 9C id. § 2571. Although the 

1 Originally, the findings of equitable chancery courts were reviewed de novo. 9C 

Wright & Miller, supra, at § 2571. As the law developed, however, the findings of 

equitable courts came to have “great weight with the appellate court but were not 

conclusive.” Id. 

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decision was not unanimous, the Committee ended up going with “the 

broader equity review to the narrower review at law.” Id.; but see Charles E. 

Clark & Ferdinand F. Stone, Review of Findings of Fact, 4 U. Chi. L. Rev.

190, 216-17 (1937) (advocating for the review at law). 

Rule 52(a) was the result. See Stern, supra, at 80. Adopting “the then 

prevailing equity practice,” the rule prescribed—as it does today—that a 

trial court’s findings of fact can be set aside for clear error. U.S. Gypsum Co., 

333 U.S. at 394–95; see Fed. R. Civ. P. 52 advisory committee’s note to 

1937 adoption. That makes appellate review of judges’ factfinding less 

deferential than it is for jury verdicts. See U.S. Gypsum Co., 333 U.S. at 394–

95; 9C Wright & Miller, supra, § 2571. It is also less deferential than 

judicial review of agency factfinding, see U.S. Gypsum Co., 333 U.S. at 395; 

Stern, supra, 84–86. That means our scrutiny is greater of trial judges than 

of any other factfinders we review. 

Courts and scholars have attempted to explain this seeming anomaly. 

Some go as far to say that the Seventh Amendment requires jury verdicts to 

receive more deference than judges’ findings. See Reynolds v. City of Chicago, 

296 F.3d 524, 526-27 (7th Cir. 2002) (“[C]ases say that in a federal civil case, 

by virtue of the Seventh Amendment, reviewing courts owe more deference

to a jury’s findings than to findings by a judge.”) (citing Pace, 320 U.S. at 

701). But that cannot be the case. A constitutional requirement of deference 

to jury trials does not preclude the same deference for bench trials. As noted, 

the pre-Federal Rules practice provided equal deference for actions at law: 

“Where a case is tried by the court, a jury having been waived, its findings 

upon questions of fact are conclusive in the courts of review, it matters not 

how convincing the argument that upon the evidence the findings should 

have been different.” Dooley v. Pease, 180 U.S. 126, 131 (1901). 

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So it is by choice that the federal rules afford less deference to bench 

trials. But while the Seventh Amendment does not compel the backwardsseeming rule giving less deference to judges’ findings, it does explain it. 

“[O]ur traditional and constitutionalized reverence for jury trial” is why we 

trust juries more. Cooper, supra, at 650. As the Supreme Court put it at a 

time when only men served on juries: “It is assumed that twelve men know 

more of the common affairs of life than does one man, that they can draw 

wiser and safer conclusions from admitted facts thus occurring than can a 

single judge.” Sioux City & Pac. R.R. Co. v. Stout, 84 U.S. (17 Wall.) 657, 664 

(1873). Modern psychology confirms this long-held intuition. See generally 

James Surowiecki, The Wisdom of Crowds: Why the Many 

Are Smarter Than the Few and How Collective Wisdom 

Shapes Businesses, Economies, Societies, and Nations

(2004). 

The wisdom of juries comes from their decisions being “made by 

persons embodying the underlying sense of fairness of the community, rather 

than by a single man, no matter how expert, who might have arbitrary notions 

of his own.” See Stern, supra, at 81. The law recognizes this value of 

collective decisionmaking in another way. Panels of judges decide cases on 

appeal, with more judges the higher a case goes up the judicial hierarchy. Id. 

at 82 (recognizing that appellate courts “have the advantage of the 

collaboration and interchange of ideas of three or more men”). Collective 

wisdom thus favors greater appellate scrutiny of bench trials. While for jury 

trials the larger crowd exists at the trial level, for bench trials the larger crowd 

is at the appellate stage. 

It turns out, then, that there is good reason for the seeming anomaly 

of giving less deference to bench trials: Larger and more representative 

groups are the ones more likely to reach the correct outcome. 

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